The Record-Review – The official newspaper of Bedford and Pound Ridge, New York

Zoning, income bog down housing deal

By DON HEPPNER

Even though fair and affordable housing is being constructed in Westchester County in compliance with the 2009 settlement agreement, the county is still at odds with the Department of Housing and Urban Development and the court-appointed monitor, James Johnson.

‘The county should now change course, and come into compliance with the settlement requirements.’

— Adolfo Carrion, HUD administrator

The county could wind up in court over two issues. The first area of concern is what the monitor and HUD perceive as a “failure to correct deficiencies regarding the promotion of source of income legislation that would bar discriminating against New York State Section 8 program funds. Those funds provide rental assistance and home ownership options to extremely low and low income households. The second issue is that the county has done nothing to overcome “exclusionary zoning practices” by towns in Westchester.

HUD and Mr. Johnson rejected Westchester County’s Analysis of Impediments five times in the last 22 months because of those two issues.

Mr. Johnson says the county’s inaction on source of income legislation and the county’s failure in addressing local zoning laws are both exclusionary practices.

The position taken by County Executive Rob Astorino is that property owners have the right to control how their property is rented, and on the second point, he said that municipalities have the right to control local zoning.

During a session Tuesday night, the Westchester County Board of Legislators was scheduled to vote on legislation that would ban discrimination against sources of income, but at the request of members of both the Republican and Democratic caucuses the vote was put off until next week, according to legislator Pete Harckham.

Even if the legislation to prevent discriminating against Section 8 income passes the board, the county executive would probably veto the legislation again, according to Donna Greene, spokesperson for the county executive.

“It would depend on what the actual bill says before the county executive would decide on a veto,” Ms. Greene said. “But he has not changed his position.”

The settlement requires that the county “promote, through the county executive, legislation currently pending before the board of legislators to ban ‘source-of-income’ discrimination in housing,” according to Mr. Johnson in correspondence to the county early in November.

“We are certainly pleased by the monitor’s findings,” said regional HUD administrator Adolfo Carrion. “The county should now change course, and come into compliance with the settlement requirements regarding the promotion of legislation banning source of income discrimination, and the development of a strategy that will ensure, by legal action, if necessary, that local jurisdictions remove zoning practices that have an exclusionary impact. This will contribute toward more vibrant and inclusive communities within its boundaries. We remain committed in assisting the county to achieve full compliance with the settlement agreement.”

Mr. Harckham said that if Mr. Astorino vetoes the legislation again, the Legislature might not have the number of votes to override the veto. “We didn’t have the votes the last time and I don’t know about this time,” Mr. Harckham said. “This gives Astorino the chance to undo the harm he did with his veto the last time.”

The revised analysis of impediments was due on Nov. 29, according to Ms. Greene, but the due date was changed to Dec. 7 to give the county more time to work on the two issues.

Since the vote on sources of income is not scheduled to take place until Dec. 5, the new deadline could be difficult to reach.

Mr. Astorino is reviewing legal options that would maintain the rights of property owners to control how their property is rented and the rights of municipalities to control local zoning.

“We are of course very disappointed with the monitor's views on these two constitutionally protected rights,” said Mr. Astorino in a statement issued on Nov. 18. “Westchester is complying with the settlement negotiated by my predecessor. In fact, the county is a year ahead of schedule in terms of the fundamental requirement of building the housing. This has been done by cooperating with local governments, not by threats of litigation.”

“The point of view of the county is that it not have to address source of income issues and it should not have to force municipalities to change zoning when units are being constructed, according to Ms. Greene. “Everybody is working cooperatively to accomplish housing units, and we are way ahead of schedule,” she said. “Isn’t that more important? We should be judged by our results, but the monitor seems to be siding with HUD, at this point.”

Ms. Greene said that the county is required to build 750 units of affordable housing in 31 designated communities. The county is ahead of schedule with 206 approved units in the pipeline and 186 with financing, well ahead of the required 100 units required by the end of November.

The monitor wants the county to be willing to force municipalities to loosen zoning laws that could prohibit fair and affordable housing where it would not be permitted now.

HUD does not accept the argument that the zoning created by towns has been enacted to protect the environment and was not enacted to be exclusionary.

“If any zoning ordinance has an exclusionary impact, it should, at a minimum, be examined, and hopefully revised, in an effort to eliminate that impact,” Adam Glantz, spokesperson for HUD, said this week.

All of the compliance work required to date, including $990 per hour paid to the HUD appointed federal monitor, has cost the county over $20 million, according to county officials.

Mr. Astorino has stated that the New York State Constitution guarantees home rule, the power of local governments to engage in policy making concerning local matters including the power to set zoning laws. He said he does not believe he has the power to force compliance or sue municipalities with their own tax dollars.

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